Tohifolau v R

Court of Criminal Appeal (NSW)|2018-11-09|Before: Basten JA, Schmidt J, Fagan J

Judgment

THE COURT: By notice filed 30 July 2018 the applicant sought leave to appeal against the severity of a sentence imposed on him on 4 August 2017 by Hunt DCJ following his plea of guilty to a charge in these terms: That he on the 1st day of August 2015 at Wellington in the State of New South Wales did cause grievous bodily harm to Robin Irvine with the intent to cause grievous bodily harm to Robin Irvine.
At the conclusion of the leave hearing in this Court on 9 November 2018 the following orders were made, with reasons reserved: 1. Leave to appeal granted. 2. Appeal dismissed. These are the Court's reasons for having made those orders.
The charge was laid under s 33(1)(b) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 25 years and a standard non-parole period of 7 years. At the time of the offence the applicant and the victim were both inmates of Wellington Correctional Centre. In circumstances elaborated in more detail below, the applicant entered the victim's cell and bashed him so severely as to cause permanent brain damage. The victim will require full-time care for the rest of his life.
The plea of guilty was entered late, well into the applicant's judge-alone trial on the charge. His Honour allowed a utilitarian discount of 5%. He imposed a sentence of 12 years and 4 months with a non-parole period of 9 years. The sentence was dated to commence from the expiry of the non-parole period of a sentence for earlier offences, pursuant to which the applicant had been in custody on 1 August 2015, when the present offence was committed.
The grounds of appeal for which leave was sought were as follows: 1 The learned sentencing judge erred in that he impermissibly took into account the applicant's criminal record when assessing the objective seriousness of the offence. 2 The learned sentencing judge erred in that, having found special circumstances, he did not give effect to his express intention to structure the total effective sentence by reducing to about 70% the non-parole period in order to reflect special circumstances. 3 In the circumstances of the case, the sentence is manifestly excessive.

Circumstances of the applicant's imprisonment

The applicant is of Pacific Islander descent and was aged 20 years at the date of the offence. He had been arrested on 12 January 2015 on charges of, inter alia, being armed with intent to commit an indictable offence and resisting arrest. Upon being taken into custody for these charges he was also charged with an offence of break, enter and steal committed on 8 December 2014. From 12 January 2015 the applicant was refused bail.
On 25 March 2015 the applicant was sentenced at Liverpool Local Court for the break, enter and steal. A term of 18 months imprisonment with a non-parole period of 9 months was imposed. For reasons not apparent on the appeal papers this sentence was backdated to commence on 10 December 2014. That had the effect that about one month of the sentence was treated as having been served whilst the applicant was in fact at liberty. The non-parole period for the break, enter and steal offence expired on 9 September 2015.
Also on 25 March 2015 the applicant was sentenced by the same Court for being armed with intent on 12 January 2015 (18 months with a non-parole period of 6 months, commencing 10 April 2015) and for resisting arrest on the same day (six months from 10 April 2015). His non-parole period for these concurrent sentences expired on 9 October 2015. In effect he was required to serve only one additional month without parole for the offences of 12 January 2015, notwithstanding that they were an entirely separate episode from the break, enter and steal of 8 December 2014 and that all these crimes had been committed whilst he was on bail for still earlier offences.
The appeal papers do not explain why the appellant was accorded the leniency which resulted from the substantial concurrence of the above sentences and from the commencement of one of them a month before the appellant was taken into custody. Nor do they explain why the same Court, also on 25 March 2015, sentenced him on call-up for an offence of receiving stolen property (committed 31 August 2013) to 6 months imprisonment which was backdated to such an extent that 5 of the 6 months were deemed to have run whilst he was clearly at liberty.
For present purposes the relevant fact is that as at the date of the offence for which Hunt DCJ sentenced the applicant, namely, 1 August 2015, he was serving at Wellington an effective head sentence for accumulated prior matters of 1 year and 10 months with an effective non-parole period of 10 months, running from 10 December 2014 to 9 October 2015.

Circumstances of the offence and the injuries inflicted

The victim of the offence, Robin Irvine, was in August 2015 serving at Wellington a 9 month term of imprisonment for negligent driving occasioning death. He shared a cell with another inmate. Shortly after noon on 1 August the applicant closed the window in the door of Mr Irvine's cell so that no one could see in or out. He entered the cell, told the cellmate to leave and hung a towel over the corner of the door before closing it, as a sign that the occupants were not to be disturbed.
After the applicant had been in Mr Irvine's cell alone with him for about six minutes two of the applicant's associates came and stood outside the door. The applicant emerged after another two minutes following which the associates went inside briefly before re-emerging and speaking with the applicant outside the cell. He then re-entered, closed the door behind him and remained in the cell for another minute. The applicant came out again and spoke to his two associates before all three went inside and closed the door. They were in there for only about a minute before leaving and returning to their own cells.
During some part of the time when the applicant was in the cell alone with Mr Irvine he beat him severely with his fists. The applicant must have left Mr Irvine in an unconscious state. He was not found until 1:35 pm when a Correctional Officer made a routine inspection of the cells. Mr Irvine was at that time lying on the floor with blood pooled around him. He was taken by ambulance to Orange Base Hospital then airlifted to Westmead Hospital.
The applicant did not give evidence before the sentencing judge. The precise nature and form of the assault upon Mr Irvine cannot be known. During the judge-alone trial, so far as it had progressed to the point where the applicant changed his plea, his counsel had adduced from one of the medical experts that the victim's injuries could have been caused by a single blow. This appears to be an inconsequential possibility, as it is admitted by the plea that the blow (or blows) was (or were) administered with intent to cause grievous bodily harm. If it was only one blow then in order to cause the injuries sustained it must been an immensely powerful one. It is an inescapable inference that in whatever particular manner the applicant beat Mr Irvine, it felled him. Given the condition in which he was later found, Mr Irvine must have been motionless on the floor when the applicant exited the cell. In short, the appellant beat Mr Irvine about the head in a sufficient manner to strike him to the floor, then left him unattended in circumstances where he was not to be found for another hour and a quarter.
Mr Irvine had suffered a fracture of the frontal bone of his skull. On a computed tomography ("CT") scan conducted soon after admission at Westmead there was found a left-sided haemorrhagic frontal contusion to his brain. An external ventricular drain was inserted through his skull to relieve pressure on the brain from intracranial bleeding. The drain remained in place for one week.
Mr Irvine was admitted to intensive care and was sedated and otherwise medicated to assist with controlling intracranial pressure. He was for a brief period maintained in a medically-induced coma. His breathing required assistance by ventilator and a complication of this was that he acquired a chest infection. He developed a clot in his lung which required blood thinning medication and his brain exhibited seizure activity, for which yet further medication was required.
After six months of recovery in Westmead Hospital Mr Irvine was able to be transferred to the brain injury rehabilitation unit on 1 February 2016. On admission there he was assessed as being in a post-coma unaware state, showing very little evidence of awareness of himself or surroundings and totally dependent in all aspects of care. The rehabilitation doctors were not initially able to communicate with him. By this stage he no longer required assisted ventilation. However he was unable to take food orally and could receive nutrition only through a feeding tube. He was incontinent in both bladder and bowel functions. He was paralysed on the left side and weak on the right. Spasticity in all limbs was such that he could not sit or stand independently, or walk. The brain damage also caused restlessness and agitation which at times translated into involuntary combative behaviour.
By the time of his discharge from the rehabilitation unit in August 2016 Mr Irvine was still unable to walk and was dependent upon the assistance of others for all aspects of his personal care and hygiene. The rehabilitation doctors have assessed that he will remain fully dependent for the rest of his life. He will always require 24-hour care. His ability to swallow is compromised and he requires food to be finely minced and specially prepared. He cannot sit or stand on his own and he needs the help of others to balance. Mechanical assistance is required for him to get in and out of bed and to go the toilet. He has no use of his left arm and only partial use of his right. His vision is permanently impaired as a result of the brain damage. These disabilities are permanent; no further improvement is expected.
In the absence of evidence from the applicant no motive for the offence has been revealed. None is suggested by inference from any known circumstances. The offence was one of senseless violence resulting in the infliction upon another human being of the most serious imaginable permanent harm short of death. Mr Irvine, a previously active man, has for all practical purposes had his life taken from him.

Ground 1 - the sentencing judge's consideration of the criminal record

Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires a sentencing judge to take into account matters of aggravation listed in subs (2), which include: (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences).
The term "serious personal violence offence" which appears in s 21A(2)(d) is defined in subs (6) as follows: serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more. The words in parentheses in par (d) of s 21A(2) had no application in sentencing the applicant.
After describing the circumstances of commission of the offence and the severity of the permanent harm suffered by Mr Irvine, the learned sentencing judge said: Additionally, the matter is aggravated for the purposes of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) given that the offender has "previous convictions" some of which involved "serious personal violence" offences.
Immediately following this his Honour considered whether the offence involved gratuitous cruelty (s 21A(2)(f)), what degree of preplanning had been undertaken and how the objective seriousness of the offence should appropriately be characterised. Then his Honour said: Turning to the offender's criminal history. The offender was not quite 20 years of age and was serving a relatively short sentence when this offence [was committed]. The bulk of the offender's record relates to juvenile matters, including two serious matters in 2009 for which he was sentenced to a control order, those being a robbery armed with an offensive weapon and an offence of using an offensive weapon to prevent lawful [detention]. The balance of the offender's record consists of driving, dishonesty, drug, minor violence and break and enter matters. In 2014 he was first imprisoned as an adult for a break and enter offence for which he was sentenced to a period of 18 months imprisonment with a nine month non-parole period.
The applicant's argument on ground 1 is that, having regard to the point at which the learned sentencing judge referred to s 21A(2)(d) within the sequence of other considerations taken into account, he must have erroneously treated the offender's record as having a bearing upon the level of objective seriousness of the offence. The applicant submitted, correctly, that this was a matter that could only go to the subjective aspect of his case, potentially disentitling him from lenient treatment.
The argument is not sustainable. His Honour said "the matter" is aggravated by the consideration in s 21A(2)(d). That is, on a fair reading, the entire combination of sentencing parameters was so aggravated. His Honour did not say that the objective seriousness of the offence, as a component within that entire combination, was separately aggravated. The sequence in which relevant considerations were dealt with by his Honour is not a sufficient basis upon which to attribute, by implication, such an error. That is particularly so in a judgment delivered orally under the pressure of time to which it is well known District Court judges are subject. The reasons are not to be scrutinised as if they were a reserved judgment in which there might be ascribed to the sentencing judge an intention to convey a particular meaning by carefully considered ordering of the subjects addressed.
Further, the learned judge's assessment of the objective seriousness of the offence could not possibly have been influenced by the applicant's record. There is no rational connection between the subjective consideration of an offender's antecedents and the objective gravity of his offending on the current occasion.
Although this was not raised in argument by the applicant, his record did not include any prior convictions for "serious personal violence offences" as defined in s 21A(6). His Honour was mistaken in using that term with respect to the applicant's previous convictions for assault and the like. The applicant had in the past been convicted of robbery armed with an offensive weapon and using such a weapon to prevent lawful detention (in 2009 at age 14), assaulting a juvenile detention officer (in 2011 at age 16), common assault and using an offensive weapon to commit an indictable offence (in 2012 at age 17) and resisting police (in June 2015 when he was aged 20). His Honour's summary quoted at [23] above shows that he correctly understood what past offences were recorded. His mis-labelling appears to have been of no consequence.
His Honour's conclusion from the record "that he is not entitled to leniency that would flow [for] somebody without any criminal record" was justified and orthodox. Because we take the view that no lesser sentence was warranted in law, even if the applicant had based on argument upon the learned judge's misuse of the statutorily defined term, that error would have been immaterial to the outcome of the application. Ground 1 is not made out.

Ground 2 - special circumstances and ratio of non-parole period

For the purposes of varying the ratio of non-parole period to head sentence pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act his Honour found "special circumstances" upon the following slender basis: The matters that go to his youth, the greater weight to potential rehabilitation and the fact that his sentence will necessarily combine with part of the pre-existing sentence - each of those factors mean that the Court finds that there [are] special circumstances.
Earlier in the reasons his Honour had said: [I]t is difficult for the Court to form a positive view of his prospects of rehabilitation. and at a later point: [W]hile the offender was not a juvenile he was of relatively limited years and some greater weight to prospects of rehabilitation [is] properly accorded to young offenders.
With respect to the relationship between the sentence to be imposed for this offence and the pre-existing sentence his Honour said: I need to have regard to issues of totality, partial accumulation and concurrence. Whilst it may have been available to commence the offender's sentence from the date at which his parole period for the pre-existing sentence expired, given that the longest of those sentence still was a matter that entitles him to automatic release to parole, I have determined that it is proper to commence the sentence that I am about to impose on the date that his non-parole period expired in relation to the pre-existing sentence. … [H]aving in mind the total effective sentence, the relationship between the head sentence and the non-parole period is about 70%, rather than 75% as would have flowed by way of strict application of the formula provided by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
As can be seen from the summary at [6]-[10] the circumstances in which the appellant intentionally inflicted grievous bodily harm upon Mr Irvine were entirely unconnected with the circumstances of the offences for which he was in custody. Upon common law principles this warranted accumulation of the sentence passed by his Honour upon the effective non-parole period of the pre-existing sentences: R v Jeremiah [2016] NSWCCA 241.
The situation did not fall within s 56 of the Crimes (Sentencing Procedure) Act because by the time Hunt DCJ came to sentence the applicant the sentences which had been passed on him on 25 March 2015 had expired (see s 56(2)(a)). So far as s 56 may have some indirect relevance to the present case it is in the following terms: 56 Sentences for offences involving assault by convicted inmate (1) This section applies to: (a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, … (2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender: (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, … is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence. (3) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence. … (5) In this section, a reference to a sentence of imprisonment is taken to be a reference to: (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set.
His Honour's decision to commence the sentence which he imposed from the date of expiry of the non-parole period of the pre-existing sentence accorded with the spirit and legislative intent of the above section, although the section was not directly applicable. The learned judge recognised that the sentences imposed on 25 March 2015 were short and the applicant would, but for this further offence in custody, have been entitled to release on parole two months later, from 9 October 2015. That was the appropriate date for commencement of the sentence his Honour fixed, rather than the date of expiry of the effective head sentence (9 October 2016).
The lack of connection between the index offence and the earlier criminal episodes did not, in the circumstances, call for his Honour to adjust the sentence he imposed according to some view of overall criminality. Trying to form a view of overall criminality spanning these disparate events would have been a meaningless exercise.
Although his Honour did not need to make any adjustment for totality, he spoke of an approximate ratio of 70% between the non-parole period and the full term in the "total effective sentence". Assuming that his Honour meant thereby to combine the sentences referred to at [6]-[10] above with that which he imposed, the "total effective" head sentence was 13 years and 2 months from 10 December 2014 to 8 February 2028. The "total effective" non-parole period was 9 years and 10 months from 10 December 2014 to 8 October 2024. The ratio is approximately 74.6%. Considering in isolation the sentence his Honour imposed, the ratio is approximately 73% (9 years non-parole period as a proportion of the head sentence of 12 years and 4 months).
Irrespective of what his Honour may have intended, the relevant consideration is the ratio contained in the individual sentence imposed for this offence. There would have been no justification for reducing the non-parole period in that sentence with a view to achieving some target ratio in the combined effect of his Honour's sentence and the pre-existing sentence. At 73%, the ratio in the sentence imposed for the grievous bodily harm charge was only slightly less than 75% but the special circumstances found by his Honour were themselves extremely slight. We are not satisfied that error has been shown as contended in ground 2.

Ground 3 - manifestly excessive sentence

In AM v R [2012] NSWCCA 203 Johnson J (with the agreement of McClellan CJ at CL and Garling J) summarised the principles applicable to sentencing for offences against s 33 of the Crimes Act as follows: [67] The maximum sentence of 25 years' imprisonment indicates the seriousness with which an offence under s.33 is regarded: R v Zhang [2004] NSWCCA 358 at [28]. As Howie J observed in R v Zamagias [2002] NSWCCA 17 at [11], the offence carries the highest maximum penalty prescribed by the legislature short of life imprisonment. [68] The seriousness of s.33 offences is emphasised, as well, by the intention required to commit an offence under the section. Intention to cause grievous bodily harm is the mental element for murder, in the event that the victim died: R v Zoef [2005] NSWCCA 268 at [113]; R v Mitchell [2007] NSWCCA 296 at [27]. It is this mental element that makes an individual offender liable to a maximum penalty of 25 years, as opposed to 10 years for a s.35(2) offence of recklessly inflicting grievous bodily harm: R v Mitchell at [27]. [69] There is a breadth of conduct and consequences comprehended by s.33: R v Williams [2004] NSWCCA 246; 148 A Crim R 325 at 336 [51]; Heron v R [2006] NSWCCA 215 at [54]. [70] It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 at 356 [137], 360 [160]-[162]. [71] The extent of injuries sustained by the victim of a s.33 offence is of great significance in assessing the objective gravity of the offence: R v Mitchell at 101 [27]-[28]. Clearly, the imposition of brain injury as a result of direct and sustained attacks to the head of the victim elevates the gravity of the crime: R v Kirkland [2005] NSWCCA 130 at [36]; R v Bobak [2005] NSWCCA 320 at [32]; R v Mitchell at 101 [28]. [72] However, the objective gravity of a s.33 offence is not determined solely by consideration of the injuries caused, with all the circumstances of the offence being relevant: Testalamuta v R [2007] NSWCCA 258 at [31]. [73] The absence of planning and premeditation is relevant to objective gravity, although this feature may be diminished (as a factor favouring the offender) given the requisite intention for a s.33 offence: R v Zamagias at [14]. This is expressly so where the attack is sustained and there are opportunities for the offender to desist from the attack but he does not do so: R v Westerman [2004] NSWCCA 161 at [17]. Likewise, where the offender does not voluntarily end the attack, but it is necessary for another person to pull him away to protect the victim: R v Zamagias at [13]; R v Mitchell at 101 [28]. [74] The fact that a s.33 offence involves an unprovoked, uncalled for and unjustified attack elevates its objective gravity: Matzick v R [2007] NSWCCA 92 at [23]. An attack upon an innocent citizen who is going about his ordinary business is a crime of increased seriousness: R v Woods (NSWCCA, 9 October 1990, Lee CJ at CL, Allen and Badgery-Parker JJ, unreported).
Noting Johnson J's observations at [68] concerning the mental element of this offence being the same as that for murder, it is relevant to consider that in the present case Mr Irvine evidently came close to death and undoubtedly would have died but for urgent, very substantial and protracted medical intervention. Had he died the applicant would have been guilty of murder. As it is, the victim is left with barely a life. As the learned sentencing judge recognised: In a horrific assault like this general deterrence and specific deterrence assume particular importance.
General deterrence is of particular importance in a case of very serious violence within a prison. It is essential that the applicant's sentence should demonstrate that the courts will not tolerate violence and disorder between prisoners: R v Jeremiah at [9]. The prevention of violence in correctional facilities is essential to their functioning in the interests of the State and to the protection of inmates against each other. Courts sentence prisoners to be deprived of their liberty, not to suffer brutality at the hands of other prisoners.
There is no evidence of any provocation by Mr Irvine or anything that could have been perceived by the applicant to justify any form of attack upon him. It is material to the degree of seriousness of the offence that the victim was vulnerable, being an inmate whose movements were restricted. He was incarcerated in proximity to the applicant and did not have the choice to avoid association.
With respect to subjective circumstances there was evidence that the applicant's parents had separated when he was very young and he was thereafter raised by his grandmother, up to the age of about 10 years when the grandmother died. During that period his father had returned to Tonga and his mother was absent in the United States. There was evidence that the applicant was emotionally affected by the death of his grandmother and thereafter commenced misbehaviour such as truancy from school, followed by drug use and juvenile crime (as referred to in the summary of his record above). There was nothing remarkable in this subjective history to justify mitigation of penalty.
The applicant wrote a letter to the sentencing judge stating that he was "deeply sorry that Mr Irvine has suffered such terrible injury and damage to his life. I never meant for this to happen". It was clarified that by the last sentence of this he meant that he had not intended the extent of the continuing consequences for Mr Irvine and that he was not putting in issue his intent to have caused grievous bodily harm. His Honour said: I cannot exclude him being remorseful now but given the weight of the evidence it is hard to see that any late remorse of the offender can properly form any part of the sentencing calculus.
The weight of the evidence to which his Honour referred included the transcript of a conversation between the applicant and his associates in the cells on 11 December 2015. At that date Mr Irvine was still in intensive care at Westmead. The applicant made these comments about him: Oh some bullshit that he is a full-blown veggie and that. I do not give a fuck lad. I don't give a fuck (sings and laughs). He needs 24 hour care. I don't care man. Now fuck off. (All three laughing) [In response to a suggestion that Mr Irvine was still in a coma] No he is saying he is retarded. The best outcome he'll get is he'll go home but he needs 24 hour care or some shit.
This conversation was neither contested nor sought to be explained by evidence from the applicant. Thus, four months after the assault and at a time when he knew the grave long-term consequences for his victim, the applicant was callously indifferent. His Honour was correct to fix a sentence without allowance for remorse.
The applicant changed his plea well into the trial, in such circumstances that his Honour thought this constituted no indication of remorse but was "an acknowledgement of the inevitable". His Honour's allowance of a 5% discount was the maximum that could have been appropriate.
The question to be asked concerning a sentence appealed as manifestly excessive is whether it was "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J), [22] (Gaudron and Gummow JJ). In the words of Gleeson CJ and Hayne J (at [6]), manifest excess "is, or is not, plainly apparent", it being a conclusion independent of the identification of any specific error in the reasoning of the sentencing judge. The impugned sentence must be so plainly inappropriate that it amounts to error in itself. In Hughes v R [2018] NSWCCA 2 at [86(2)] it was said that intervention on the ground of manifest excess will be warranted where the difference between the impugned sentence and sentences passed in comparable cases is such that it "may be concluded that there must have been some misapplication of principle" or where the sentence is "so far outside the range of sentences available that there must have been error".
Taking together all the considerations identified in these reasons it cannot be said that the sentence imposed by his Honour was manifestly excessive according to these principles.

Conclusion

We do not consider that his Honour's reasoning discloses any specific error as argued on grounds 1 and 2 and, if specific error had been shown, we would not consider any lesser sentence warranted in law. The sentence was not manifestly excessive as contended in ground 3. Accordingly, leave was granted but the appeal was dismissed.

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